ARCHIVED — Order Fixing April 1, 2011 as the Day on which Certain Provisions of Chapter 23 of the Statutes of Canada, 2010, Come into Force

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Vol. 145, No. 8 — April 13, 2011

Registration

SI/2011-22 April 13, 2011

AN ACT TO PROMOTE THE EFFICIENCY AND ADAPTABILITY OF THE CANADIAN ECONOMY BY REGULATING CERTAIN ACTIVITIES THAT DISCOURAGE RELIANCE ON ELECTRONIC MEANS OF CARRYING OUT COMMERCIAL ACTIVITIES, AND TO AMEND THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT, THE COMPETITION ACT, THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT AND THE TELECOMMUNICATIONS ACT

P.C. 2011-479 March 25, 2011

His Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to section 91 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, (“the Act”), chapter 23 of the Statutes of Canada, 2010, hereby fixes April 1, 2011 as the day on which subsections 12(1), (3) and (4), section 12.1 and subsections 12.2(1) and (3) of the Personal Information Protection and Electronic Documents Act, as enacted by section 83 of the Act and sections 84 and 85, subsection 86(1) and section 87 of the Act come into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

That the Governor in Counsel fix the day on which sections 83 (in part), 84 and 85, subsection 86(1) and section 87 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (the Act) regarding amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) come in to force.

Objective

These provisions provide exceptions to the Privacy Commissioner’s obligation to investigate every complaint filed and allow her to share information and evidence with her international and provincial counterparts.

As a result of these amendments to PIPEDA, the Commissioner will no longer be obligated to investigate every complaint when she is of the opinion that (1) the complaint ought first to be dealt with by a grievance or other review procedure; (2) it would be more appropriate for the complaint to be dealt with by a procedure under another federal or provincial law; or (3) too much time has passed between the time of the complaint and the time at which the subject matter of the complaint arose.

The additional sections will permit the Privacy Commissioner to share information and collaborate in investigations with her international and provincial counterparts in order to ensure that personal information is protected in as consistent a manner as possible throughout Canada and with international partners.

It is important to note that these provisions apply to the whole of PIPEDA, including the new violations in the Act, which will come into force likely in the fall of 2011. The Commissioner will be able to use these provisions throughout her enforcement of PIPEDA.

Background

In a January 8, 2008, letter to Industry Canada in response to consultations held by officials on the implementation of the October 17, 2007, Government Response to the Report on the statutory review of the PIPEDA by the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI), the Privacy Commissioner asked that PIPEDA be modified to provide her with increased discretion in handling complaints. In her correspondence, the Commissioner noted that the Canadian Human Rights Act, the Public Servants Disclosure Protection Act and the Accountability Act as well as Quebec’s An Act Respecting the Protection of Personal Information in the Private Sector allow Commissioners to refuse or cease to examine a matter if the application is frivolous, made in bad faith, could be better dealt with in another forum or where further investigation would clearly serve no purpose. The Privacy Commissioner asked the Government of Canada to consider granting her Office a similar degree of flexibility, more specifically asking for greater discretion at the front-end to refuse complaints or to discontinue the investigation of complaints, thereby allowing her to focus her investigative resources on those privacy issues that are of broader systemic benefit.

On collaborative issues, the Privacy Commissioner led an OECD working group which developed a recommendation to promote cooperation between Member countries on the enforcement of laws protecting privacy. This recommendation, “Recommendation on Cross-Border Co-Operation in the Enforcement of Laws Protecting Privacy” was adopted by the OECD in 2007. The Office of the Privacy Commissioner has also been a leading participant in the development of similar collaborative arrangements and procedures within the Asia-Pacific region.

In its May 2, 2007, Report on the Review of PIPEDA, ETHI recommended that the Privacy Commissioner be granted the authority under PIPEDA to share information and cooperate in investigations with international and domestic data protection authorities. In its October 17, 2007, Response to the Report, the Government of Canada agreed to this recommendation.

Implications

The coming into force of the legislation will enable the Privacy Commissioner be able to exchange information with her provincial counterparts as required to conduct investigations or to assist in fulfilling their responsibilities with respect to the protection of personal information in general.

Information flows freely throughout Canada, with little regard for provincial boundaries, as organizations often have operations in more than one province or often exchange information with business partners in other provinces. As a result, privacy violations may involve more than one jurisdiction and may require the involvement of more than one Privacy Commissioner.

Privacy advocates have in the past expressed some concern about providing the Privacy Commissioner with investigatory discretion as the current situation requires her to investigate every single complaint filed. These concerns may surface again with coming into force. The communications strategies will address this issue noting that her discretion with regard to refusing to investigate a complaint is limited. These modifications provide the Privacy Commissioner of Canada with the flexibility to encourage individuals to resolve their information-handling conflicts directly with the organization or through other dispute resolution mechanisms such as those provided by an industry oversight body or through other remedies available under federal or provincial law. Furthermore, if too much time has passed between the time of the incident and the time at which the complaint was lodged, an investigation of the facts by the Commissioner may no longer be useful. This discretion will allow the Commissioner to allocate her investigative resources to address more pressing privacy issues and challenges. Moreover, in the event that the Privacy Commissioner discontinues an investigation, the complainant can ask the Federal Court to hear the complaint instead.

Consultations

As explained in the background section, the ETHI Committee recommended that the Privacy Commissioner be granted authority under PIPEDA to share information and cooperate with international and domestic counterparts. In the October 17, 2007, Government Response to the Report on the statutory review of PIPEDA, this recommendation was agreed to. As also mentioned in the background section, Industry Canada officials held consultations on the implementation of the Government Response to the ETHI Committee. The Privacy Commissioner asked that PIPEDA be modified to provide her with increased discretion in handling complaints.

The anti-spam legislation was thoroughly reviewed by the House of Commons Standing Committee on Industry, Science and Technology (INDU) during the last Parliamentary session. INDU heard from diverse witnesses. The legislation, as passed on December 15, 2010, reflects extensive consultation with stakeholders and input from witnesses throughout the Parliamentary process.

Communication

Industry Canada will prepare media lines to respond to media inquiries concerning these sections coming into force in advance of others. It is anticipated that there could be commentary from privacy advocates regarding the Privacy Commissioner’s investigatory discretion. Given that the Privacy Commissioner is a high-profile advocate of the legislation, and as an Officer of Parliament, it is likely that she will communicate proactively with respect to investigatory discretion and information sharing to conduct investigations. Given this, it is not recommended that the Minister of Industry or departmental officials communicate this matter proactively, but rather that they wait until all components of the legislation come into force in fall 2011.